Supreme Court

No. 2017-398-C.A.

(W1/15-384A)

State :

v. :

Christopher Forlasto. :

NOTICE: This opinion is subject to formal revision before 

publication in the Rhode Island Reporter. Readers are requested to 

notify the Opinion Analyst, Supreme Court of Rhode Island, 

250 Benefit Street, Providence, Rhode Island 02903, at Telephone 

222-3258 of any typographical or other formal errors in order that 

corrections may be made before the opinion is published.

October 22, 2019
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Supreme Court

No. 2017-398-C.A.

(W1/15-384A)

State :

v. :

Christopher Forlasto. :

Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

O P I N I O N

Justice Indeglia, for the Court. The defendant, Christopher Forlasto, appeals from a 

pretrial order of the Superior Court denying his motion to dismiss one count of first-degree 

sexual assault on the grounds of double jeopardy and prosecutorial misconduct.

1

 The defendant 

also appeals from the same pretrial order granting the state’s motions in limine to exclude certain 

photographic evidence and to admit evidence of a jury’s prior guilty verdict against the 

defendant, as well as previously acquitted conduct. This case came before the Supreme Court on 

October 3, 2019, pursuant to an order directing the parties to appear and show cause why the 

issues raised in this appeal should not be summarily decided. After carefully considering the 

parties’ written and oral submissions and reviewing the record, we conclude that cause has not 

been shown and that this case may be decided without further briefing or argument. For the 

reasons set forth in this opinion, we affirm the order of the Superior Court. 

 

1 This Court has consistently held “that the denial of a motion to dismiss on double jeopardy 

grounds is immediately appealable, even though such an appeal is interlocutory.” State v. 

Corleto, 161 A.3d 504, 506 n.1 (R.I. 2017); see also State v. O’Connor, 936 A.2d 216, 217 (R.I. 

2007); State v. Casas, 792 A.2d 737, 739 (R.I. 2002). 
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I

Facts and Travel

On September 30, 2015, a grand jury indicted defendant on four counts of first-degree 

sexual assault, in violation of G.L. 1956 § 11-37-2 (counts one, two, three, and five); two counts 

of assault and battery, in violation of G.L. 1956 § 11-5-3 (counts six and seven); and one count 

of assault with a dangerous weapon, in violation of § 11-5-2 (count four). Two of the 

first-degree sexual assault counts were based on allegations of oral penetration (counts two and 

three), and two counts were based on allegations of anal penetration (counts one and five).

The events giving rise to the charges began on the evening of July 16, 2015, and 

continued into the early morning hours of July 17, 2015. At a jury trial in Washington County 

Superior Court, two contrasting versions of events were described by defendant and the 

complaining witness, Jane.2 The nine-day trial included seventeen witnesses, both lay and 

expert, and a large number of exhibits pertaining to serious allegations of sexual assault by 

defendant. Additionally, evidence of several surgeries that resulted in a lengthy recovery period

for Jane was introduced. 

After the close of the state’s case-in-chief, the trial justice granted defendant’s motion for

a judgment of acquittal as to count one (first-degree sexual assault based on anal penetration). 

Later, the defense presented its case, the parties rested, and closing arguments were heard by the 

jury. After the state’s closing argument, defendant objected to what he characterized as an

“improper plea to the passions of the jury” when, according to defendant, the prosecutor cried at 

the end of her closing argument. The trial justice remarked that she had not noticed the 

prosecutor cry, but she added that the issue had been brought to her attention. The trial justice 

 

2 We refer to the complaining witness in this case by a pseudonym to protect her privacy.
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questioned the prosecutor, who admitted that she had become “choked up[,]” but stated that she 

“didn’t cry.” The trial justice suggested the following curative instruction for the jury: 

“As is the case in many trials, emotions run high. Witnesses 

become emotional. Sometimes spectators become emotional. 

Attorneys also can become emotional. You must disregard any 

display of emotion so that it does not interfere with your ability to 

decide this case fairly. When you were selected to sit on this case, 

you promised us that you would decide this case solely on the 

evidence properly put before you and on the law that you receive 

from the court. We are human and not devoid of emotions; 

however, you are duty bound not to let passion or prejudice 

influence you in determining the issues in the case.” 

The trial justice then asked defense counsel: “Is there something else you suggest?” Defense 

counsel responded: “No, Your Honor. That’s fine.” The curative instruction was then given to 

the jury, with no objection.

Also during her instructions to the jury, the trial justice informed the jurors that they 

would be given a verdict form with six questions, one for each of the six remaining counts of the 

indictment. Each question referred to the specific acts that formed the basis for that particular

count. Ultimately, after deliberations, the jury found defendant not guilty on counts two and 

three, first-degree sexual assault based upon two alleged acts of oral penetration. The jury also 

found defendant not guilty on count four, assault with a dangerous weapon, which was based on 

the allegation that defendant had choked Jane with his hands, and count seven, assault and 

battery, which was based on the allegation that defendant had bitten Jane’s arm. The jury found 

defendant guilty on count six, assault and battery, which was based on a bite to Jane’s cheek. On 

count five, first-degree sexual assault based upon anal penetration, the jury deadlocked and did 

not reach a verdict. 

Based on the mistrial resulting from the hung jury, the trial justice scheduled a status 

conference for February 8, 2017, because it was evident that the state would retry defendant on 
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the deadlocked count. The state and defendant then filed several pretrial motions. The 

defendant filed a motion to dismiss the sole remaining count, arguing that double jeopardy 

barred a retrial of acquitted conduct that arose from the same set of facts previously decided by 

the jury and further arguing that the prosecutor had engaged in conduct that was intended to 

cause a mistrial. The defendant also filed a motion in limine seeking to exclude any reference to 

acquitted conduct from the first trial. The state objected to defendant’s motions and moved in 

limine to permit evidence related to the acquitted conduct. The state filed two additional motions

in limine: one to introduce evidence of defendant’s assault conviction (count six) under Rule 609

of the Rhode Island Rules of Evidence, and one to suppress certain photographic evidence under 

Rule 403.3

The trial justice held a hearing on the parties’ motions on May 12, 2017. On June 2, 

2017, the trial justice, in a bench decision, denied defendant’s motion to dismiss count five on 

double jeopardy grounds. The trial justice found that the issues defendant sought to foreclose 

were not actually litigated by the prior jury’s acquittal in counts two, three, four, and seven, or in 

the court’s decision as to count one. The trial justice also denied defendant’s motion to dismiss

on prosecutorial misconduct grounds, finding that defendant had agreed to a curative instruction 

and had not moved for a mistrial. The trial justice granted the state’s motion in limine to permit 

Rule 404(b) evidence of the conduct referenced in acquitted counts one, two, three, and four; 

however, the trial justice denied the motion as it pertained to the acquitted conduct referenced in 

count seven. Finally, the trial justice granted the state’s motions in limine to introduce evidence 

 

3 As of the time of publication of this opinion, defendant has yet to be sentenced on his

conviction for assault in count six. 
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of defendant’s assault conviction (count six) for a limited purpose, and to suppress certain 

photographic evidence. The defendant timely appealed.4 

II

Discussion

A

Double Jeopardy

The defendant avers that the state’s proposed use of acquitted conduct, pursuant to Rule 

404(b), violates his rights under the Double Jeopardy Clause of the Fifth and Fourteenth 

Amendments to the United States Constitution, as well as article 1, section 7 of the Rhode Island 

constitution. The defendant contends that the trial justice erred in ordering that facts alleged in 

the counts for which he was acquitted are admissible into evidence in the retrial of count five, for 

first-degree sexual assault. According to defendant, the state would be relying on the same facts 

upon which a jury has already found defendant not guilty, in violation of his right to be free from 

double jeopardy.

1

Standard of Review

When a defendant alleges a violation of the Double Jeopardy Clause, it “presents this 

Court with a mixed question of law and fact.” State v. Footman, 196 A.3d 758, 764 (R.I. 2018). 

“Therefore, ‘our review of such a claim is de novo.’” Id. (quoting State v. Marsich, 10 A.3d 435, 

441 (R.I. 2010)). “Within the purview of a de novo review, a trial justice’s findings of historical 

fact are accorded great deference.” Id.

 

4 We note that defendant’s appeal was filed prior to the docketing of the order in the Superior 

Court, which occurred on February 28, 2019; however, “under circumstances such as the instant 

case presents, this Court will treat a premature appeal as timely filed.” State v. Diamante, 83 

A.3d 546, 548 n.5 (R.I. 2014). 
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2 

Analysis

This Court has “interpreted our state constitutional prohibition against double jeopardy in 

a manner consistent with the Federal Constitution * * * so that our inquiry is ultimately the same 

under either clause.” State v. One 1990 Chevrolet Corvette VIN: 1G1YY3388L5111488, 695 

A.2d 502, 505 (R.I. 1997). We have recognized that “the double jeopardy clause protects against 

three distinct abuses: a second prosecution for the same offense after acquittal; a second 

prosecution for the same offense after conviction; and multiple punishments for the same 

offense.” State v. Ciolli, 725 A.2d 268, 270 (R.I. 1999) (quoting One 1990 Chevrolet Corvette, 

695 A.2d at 505). 

The defendant does not allege a violation of any of the three distinct abuses that have 

been recognized by this Court. The defendant is not being prosecuted for the same offense after 

an acquittal, because the state seeks retrial for only count five, which resulted in a mistrial. The 

defendant is not being prosecuted for the same offense after a conviction, and he will not be 

punished twice for the same offense. The defendant merely asserts that admitting the acquitted 

conduct into evidence would force him to relitigate issues already decided by a valid judgment of 

acquittal. 

The defendant cites to two United States Supreme Court cases, Yeager v. United States, 

557 U.S. 110 (2009), and Ashe v. Swenson, 397 U.S. 436 (1970), for the proposition that the 

Double Jeopardy Clause precludes the state “from relitigating any issue that was necessarily 

decided by a jury’s acquittal in a prior trial.” Yeager, 557 U.S. at 119. The defendant correctly 

states that those two cases explained that “‘when an issue of ultimate fact has once been 

determined by a valid and final judgment’ of acquittal, it ‘cannot again be litigated’ in a second 
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trial for a separate offense.” Id. (quoting Ashe, 397 U.S. at 443). The defendant, however, does 

not argue that the jury in the first trial necessarily decided the ultimate issue in count five, which 

resulted in a deadlocked jury and is the only count for which the state seeks a retrial. Instead, 

defendant argues that the jury necessarily decided certain issues when they acquitted him on 

counts two, three, four, and seven, and that admitting that acquitted conduct into evidence, 

pursuant to Rule 404(b), would force defendant to relitigate those same issues already decided by 

a valid judgment of acquittal, in violation of the Double Jeopardy Clause. This argument 

conflates a double jeopardy contention with one that is evidentiary.

We have consistently held that collateral estoppel does not bar the use of acquitted 

conduct and that such evidence may be admissible. See, e.g., State v. Hewes, 666 A.2d 402, 403

(R.I. 1995); State v. Bernier, 491 A.2d 1000, 1005 (R.I. 1985). “The fact of acquittal goes to the 

weight, not the admissibility, of the evidence.” Hewes, 666 A.2d at 403. Whether defendant’s 

acquitted conduct is admissible under Rule 404(b) at his retrial on count five is an issue that is 

not properly before us at this time, as evidentiary issues are matters to be left to the time of trial 

and do not “fall within the exception * * * which permits a party to appeal, on double jeopardy 

grounds, before the entry of a final judgment.” State v. O’Connor, 936 A.2d 216, 223 (R.I. 

2007). Accordingly, we will not address that issue at this time.5 

 

5 The defendant also asks this Court to reverse certain decisions of the trial justice, which 

reversal would effectively exclude evidence of defendant’s acquitted conduct pursuant to Rule 

403 of the Rhode Island Rules of Evidence and defendant’s assault conviction in count six, and 

would allow admission of certain photographic evidence. Again, however, those matters are to 

be left to the time of trial and are not properly before this Court. See State v. O’Connor, 936 

A.2d 216, 223 (R.I. 2007) (holding that evidentiary issues are matters to be left to the time of 

trial and are not considered on interlocutory appeal).
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B

Prosecutorial Misconduct

The defendant alleges that he suffered a second double jeopardy violation when the trial 

justice denied his motion to dismiss based upon an allegation of prosecutorial misconduct. 

Specifically, defendant alleges that the prosecutor started visibly crying during her closing 

argument in order to intentionally cause a mistrial. 

1

Standard of Review 

“In instances ‘where a defendant has moved for a mistrial and asserts on appeal that 

double jeopardy bars his retrial because of prosecutorial goading, we defer to the trial court’s 

findings of fact.’” State v. Rolle, 84 A.3d 1149, 1154 (R.I. 2014) (quoting O’Connor, 936 A.2d

at 220). “Whether prosecutorial misconduct was intended to goad the defendant into seeking a 

mistrial is a question of fact for the trial justice to decide.” Id. (brackets omitted) (quoting State 

v. Hull, 754 A.2d 84, 87 (R.I. 2000)). “On appeal, we ‘will not disturb the trial justice’s finding 

on that factual issue if it is supported by competent evidence.’” Id. (brackets omitted) (quoting 

O’Connor, 936 A.2d at 220). 

2 

Analysis

Generally, when a mistrial is granted at a defendant’s request, “the prohibitions on double 

jeopardy in the United States and Rhode Island Constitutions do not preclude the retrial of that 

defendant’s criminal case.” State v. Corleto, 161 A.3d 504, 509 (R.I. 2017). This Court, 

however, has recognized a narrow exception “where a prosecutor has engaged in extreme 

conduct intended to provoke the defendant into moving to pass the case.” Id. (brackets omitted) 
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(quoting Rolle, 84 A.3d at 1155); see Oregon v. Kennedy, 456 U.S. 667, 676 (1982) (establishing 

that “[o]nly where the governmental conduct in question is intended to ‘goad’ the defendant into 

moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after 

having succeeded in aborting the first trial on his own motion”). 

However, we do not need to reach the merits of this issue because we are of the opinion 

that the defendant’s prosecutorial misconduct argument was not properly preserved below and 

therefore has been waived. Defense counsel noted an objection after the conclusion of the 

prosecutor’s closing argument, and the trial justice questioned the prosecutor. The prosecutor

candidly admitted that she “choked up” during her closing argument. The trial justice informed 

the parties that she would give a curative instruction, to which defense counsel agreed. When 

defense counsel was asked by the trial justice if he suggested anything more, defense counsel 

stated: “No, Your Honor. That’s fine.” Defense counsel never moved for a mistrial, and a

mistrial on count five was ultimately granted based upon the fact that the jury was deadlocked, 

not based on the prosecutor’s behavior. “In accordance with this Court’s longstanding raise-orwaive rule, if an issue was not properly asserted, and thereby preserved, in the lower tribunals, 

this Court will not consider the issue on appeal.” Trojan v. Trojan, 208 A.3d 221, 231 (R.I. 2019) 

(brackets omitted) (quoting Adams v. Santander Bank, N.A., 183 A.3d 544, 548 (R.I. 2018)).

III

Conclusion

For the reasons set forth herein, we affirm the order of the Superior Court. The record in 

this case may be returned to that tribunal. 
SU‐CMS‐02A (revised June 2016)

STATE OF RHODE ISLAND AND PROVIDENCE PLANTATIONS 

SUPREME COURT – CLERK’S OFFICE 

OPINION COVER SHEET 

Title of Case State v. Christopher Forlasto.

Case Number No. 2017-398-C.A. 

(W1/15-384A)

Date Opinion Filed October 22, 2019 

Justices Suttell, C.J., Goldberg, Flaherty, Robinson, and 

Indeglia, JJ.

Written By Associate Justice Gilbert V. Indeglia 

Source of Appeal Providence County Superior Court 

Judicial Officer From Lower Court Associate Justice Netti C. Vogel 

Attorney(s) on Appeal 

For State: 

Christopher R. Bush 

Department of Attorney General

For Defendant: 

Gary G. Pelletier, Esq.